The criminal prosecution of a leading presidential candidate has never happened in the nation’s history. With Donald Trump facing two federal and two state indictments, our justice system and our political system seem headed for a constitutional collision. The dangers of such a clash are manifested in the Justice Department’s request that Trump be placed under a gag order in the Washington case where the former president is charged with interfering in the 2020 election certification.
Special counsel Jack Smith is seeking to stop Trump from making repeated statements that could provoke a lone wolf to violence, including “statements about the identity, testimony or credibility of prospective witnesses” and “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
Already, the cost to provide increased security for prosecutors, judges and their families is likely to reach tens of millions of dollars before the cases are over.
Earlier this week, in response to Smith’s request for a protective order, Trump’s lawyers countered that the Justice Department is attempting to “muzzle” him, writing, “The prosecution may not like President’s Trump’s entirely valid criticisms, but neither it nor this Court are the filter for what the public may hear.” The defense goes on to note, “The prosecution does not point to a single prosecutorial or judicial function that has been impaired due to the cited social media posts . . . ”
U.S. District Court Judge Tanya Chutkan already has told Trump he has to “yield to the orderly administration of justice.” But what can she do about his refusal to comply? Heavy fines or even pretrial detention is limited by the court of public opinion. Trump, who may be running again in part to get himself out of his multiple legal predicaments, is already sending fundraising emails off Smith’s request: “If Joe Biden gets his way this would be the LAST email I ever send you.” Tuesday night, after a state Supreme Court judge in Manhattan found in a civil fraud suit that Trump had overestimated the value of his marquee properties, Trump again called his antagonists “deranged.”
After the Jan. 6 Capitol riot, there is little doubt that Trump’s vitriol, intentionally or not, could cause real harm to judge, jurors, prosecutors, and witnesses in all of his cases. He is unlikely to abandon his long-honed playbook of such attacks to get the outcomes he wants.
Federal judges have considerable experience dealing with mob bosses, gang leaders and drug lords who use threats to create fear and exert control. Trump can still disparage the motives of his antagonists and opine about his claims of abuse of power, but his First Amendment protections are not unlimited. The ways and forums in which he expresses those views should be restricted to protect the integrity of the judicial process and the safety of those involved with it.
MEMBERS OF THE EDITORIAL BOARD are experienced journalists who offer reasoned opinions, based on facts, to encourage informed debate about the issues facing our community.